Unit 2 – Relations with other institutions: Evaluate the view that the Supreme Court has too much influence over the executive.
Evaluate the view that the Supreme Court has too much influence over the executive.
The unit 2 module on ‘Relations with other institutions’ doesn’t contain a huge number of possible essay questions. Recently, most questions on this module have asked about the sovereignty of the UK Parliament. Therefore, a question on the relationship between the Supreme Court/judiciary and the UK Executive or Parliament seems likely. In this question you will just need to consider how the Supreme Court/judiciary can change impact upon the desires of the UK government.
The following is an approach that could be taken to the question:
- Paragraph 1 – The use of judicial review
- Paragraph 2 – Declarations of incompatibility
- Paragraph 3 -The growing influence and power of the UK Supreme Court
As you will see through the following essay, the strongest argument to make is that the judiciary really does not have much influence over the executive. Although there have been some notable examples of recent clashes between the judiciary and the government, these are very much isolated incidents, and the UK Supreme Court is far removed from its American counterpart.
If you prefer, there is a video on our YouTube channel which answers this questions also:
Essay
One way in which the Supreme Court can limit the power of the executive is through the use of judicial review. The Supreme Court has the responsibility for determining whether the government has acted ultra vires, which simply means beyond its power. If the Supreme Court finds that the government has acted ultra vires than it can force them to reverse their action. For example, in Miller v the Prime Minister, the Supreme Court ruled that the Prime Minister Boris Johnson had indeed exceeded his power by proroguing Parliament in September 2021. Johnson had taken this action with the intention of preventing Parliament from ruling out the possibility of a no deal Brexit. The Supreme Court however said that he did not have the power to do so, thus limiting his power. Another examples is Hunt v Lewisham Hospital (2013) in which a judicial review determined that the Health Secretary, Jeremy Hunt has acted beyond his power when he determined that maternity and A&E services at Lewisham Hospital should be scaled back. Here was a further example of how plans to implement the governments agenda was blocked by the judiciary. However, in reality, the use of a judicial review is somewhat limited by the reality of Parliamentary sovereignty. In 2010. The Supreme Court ruled that Gordon Brown’s government had acted beyond its power by freezing the economic assets of those suspected of plotting terrorist activities. In response to this, Brown passed a new piece of legislation, the Terrorist Asset-Freezing (Temporary Provisions) Act, which gave him the ability to carry out his initial aims and therefore made the judicial review obsolete. On balance, judicial reviews are less of an impediment to government than we are led to believe. The number of judicial reviews has fallen considerably since a peak in 2013 when over 15,000 applications were made. In fact, in 2022 only 2,400 judicial reviews were made. Moreover, judicial review applications rarely in fact find against the government. The success rate of these applications is somewhere between 20-30%, thus suggesting that their impact on government is in fact quite limited.
A second way in which the judiciary can impact the work of government is through the stating of declarations of incompatibility with the European Convention on Human Rights. As Parliament is sovereign and therefore able to make law, the court cannot demand that any element of UK law that may violate the ECHR to be removed. Instead they can only suggest that the law is incompatible with the ECHR and therefore the government might consider changing it. For example, in 2004, the judiciary stated that the Crime and Security Act 2001 which had seen 9 suspected terrorists detained in Belmarsh prison without trial was incompatible with the ECHR. Subsequently, the government had to release the suspects. However, declarations of incompatibility are just that, declarations and not demands to remove legislation. In 2023, the judiciary said that the governments plan to deport asylum seekers to Rwanda was unlawful as it would breach several international treaties. Despite this, the government persevered with the Safety of Rwanda (Asylum and Immigration) Bill which passed in 2024. Section 3 of the bill said that even if there was a declaration of incompatibility made with the ECHR then the government could decide whether it agreed or not. Moreover, not all declarations of incompatibility are controversial. In 2019, the UK government legalised civil partnerships for heterosexual couples after the European court of Human Rights suggested that they were being discriminated against because homosexual couples had to access to both marriage and civil partnerships. The government was happy to comply with this declaration of incompatibility. On balance, declarations of incompatibility give the judiciary only some power over the government. Since 1998 there have only been 46 declarations of incompatibility and 10 of these have been withdrawn. It has also become increasingly the case that the government can compromise with the European Court of Human Rights. For example, over the issue of whole life sentences, which was said to be incompatible with the ECHR, the court agreed that the government could continue to issue whole life sentences but there just had to be the possibility that their sentences would be reviewed.
Finally, the Supreme Court has become much more willing to challenge the government than in years gone past and therefore does have more impact on the executive than was previously the case. The Supreme Court, being more independent a body than the law lords that preceded them feel that this independence gives them more scope to challenge the government. For example, in 2016, the case Miller v Brexit Secretary saw the Supreme Court determine that Parliament was sovereign and therefore had to decide whether to begin the Brexit process, rather then the government. Moreover, in cases such as Unison v the Lord Chancellor and Jeremy Hunt v Lewisham Hospital we have seen how the judiciary has been more willing to determine that the government has acted ultra vires and therefore blocked the actions they wished to take. Despite this, the UK judiciary is still generally unwilling to become involved in cases that it sees as being above its remit as an unelected body. For example, in the case of R Nicklinson v the Justice Secretary, in which Mr Nicklinson, who had locked in syndrome, wanted to end his life but was prohibited from doing so by the suicide Act. The Supreme Court said that whilst sympathetic to the case of Mr Nicklinson, the subject of assisted suicide could only be decided by elected politicians and not the judiciary. In this sense, the UK judiciary is a far cry from the US Supreme Court which has made consequential judgements on matters such as abortion and gay marriage. On balance, the court has not become too much of an obstacle to the executive. Much of our awareness of the role of the court stems from the lack of other areas of opposition. Given that the government has such power over the legislature and the Lords is a weaker institute than might be the case in other countries, the only potential block on government plans is often just the legislature. This often disguises the fact that the judiciary rarely finds against the government, it is just that when they do, we tend to notice it.
